THORNWELL v. UNITED STATES

James R. THORNWELL, Plaintiff,
v.
UNITED STATES of America et al., Defendants

The opinion of the court was delivered by: RICHEY

MEMORANDUM OPINION

This case is before the Court on defendants' motion to dismiss. Plaintiff, Mr. James Thornwell, is a former serviceman who seeks to recover for injuries which he sustained both before, and after, his discharge from the United States Army. The named defendants include the United States as well as twenty-nine individuals who, Mr. Thornwell asserts, all participated in the tortious conduct which led to his injuries. Although Mr. Thornwell may have employed a shotgun approach in naming his defendants, the defendants attempt to benefit from the same method in their motion to dismiss. The motion before the Court raises a host of substantive and procedural issues and, after reviewing the relevant statutes and case law, the Court is drawn to the conclusion that it must dismiss counts I, II, III, and IV, as well as counts VII and VIII. The Court, however, shall deny defendants' motion to dismiss Counts V and VI. The Court also rejects defendants' assertion that venue is improper and it postpones a definitive ruling on their claim that personal jurisdiction is wanting.

The first incident from which Mr. Thornwell's claims arise occurred in France in June 1961. At the time, Mr. Thornwell was a private in the United States Army, and he had been imprisoned as part of an Army investigation into the theft of approximately one hundred classified documents. While in prison, Mr. Thornwell was subjected to a battery of harsh interrogation techniques: He was confined "for months" to a small, windowless, unlit "isolation chamber," where he was deprived of sleep and toilet facilities; he was interrogated for as long as seventy hours at a time; during interrogation he was "physically abused," "terrified with threats of . . . death," and "degraded by a steady stream of verbal abuse, including racial slurs and accusations of sexual impropriety." Complaint P 39 (filed Oct. 2, 1978).

This phase of Mr. Thornwell's interrogation ended when a special team of Army officers arrived on the scene as part of "Operation Third Chance." Operation Third Chance was a covert program designed to test the utility of a psychedelic chemical, lysergic acid diethylamide ("LSD"), as an aid to interrogation; it involved the surreptitious, nonconsensual administration of LSD to foreign nationals who were then questioned under conditions of extreme physical and mental stress. Evidently, by special permission, Mr. Thornwell became the sole exception to the "foreign national" limitation on the scope of Operation Third Chance. Id. P 36.

As part of this covert program in human experimentation, Mr. Thornwell was secretly drugged with LSD and then subjected to further physical and mental degradation. The official report prepared by the Operation Third Chance special purpose team explained that the experiment on Mr. Thornwell demonstrated the "usefulness of employing as a duress factor the device of inviting the subjects' attention to his (LSD) influenced state and threatening to extend this state indefinitely, even to a permanent condition of insanity or to bring it to an end at the discretion of the interrogators. . . ." Id. P 41. The report also concluded that in Mr. Thornwell's case, the drug produced an "extreme paranoic reaction" which was "highly sustained and almost incapacitating." Id. P 40. Four months after the test, Mr. Thornwell received a general discharge from the Army.

The transformation to civilian status, however, did not free Mr. Thornwell from the wrongs inflicted by his alleged tortfeasors. Despite his efforts to ascertain the cause or causes of his condition of ceaseless misery, the defendants deliberately concealed from him the facts and circumstances of the drug experiment. Id. PP 46-48. Even after the Department of Defense had assured Congress that the facts of LSD testing would be disclosed to all subjects of the experiments, Mr. Thornwell remained uninformed about his own participation in the tests. In the alternative, Mr. Thornwell claims that the defendants, who had assumed the burden of aiding men in his condition, were negligent in failing to provide him with examinations and treatment.

In Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), the Supreme Court established the doctrine of intra-military immunity, and where plaintiffs have sought recovery for injuries sustained in the course of military service, lower courts have consistently construed the Feres doctrine of immunity broadly. Feres actually belongs to a series of Supreme Court decisions involving the tort liability of the military. In the first case, Brooks v. United States, 337 U.S. 49, 69 S. Ct. 918, 93 L. Ed. 1200 (1949), the petitioner was a soldier who had been struck by a military car while he was on furlough; the Court ruled that, in view of the petitioner's lack of involvement in military affairs at the time of the accident, recovery was appropriate. The following year, in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), the Court reviewed three claims by soldiers who had been harmed by the negligence of their military superiors; it concluded, "(T)he Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." 340 U.S. at 146, 71 S. Ct. at 159. Finally, in United States v. Brown, 348 U.S. 110, 75 S. Ct. 141, 99 L. Ed. 139 (1954), the Court examined the claim of a veteran who alleged medical malpractice by an Army surgeon in the course of treating a wound received six years earlier while on active duty in the armed services. Relying on Mr. Brown's "civilian status" at the time of the alleged wrong, 348 U.S. at 112, 75 S. Ct. 141, the Court ruled that Feres had no application. Although all three of these decisions involved liability under the Federal Tort Claims Act, it is clear that the doctrine of immunity also extends to defendants named in their individual capacity. Bailey v. DeQuevedo, 375 F.2d 72 (3d Cir.), Cert. denied, 389 U.S. 923, 88 S. Ct. 247, 19 L. Ed. 2d 274 (1967); Levin v. United States, 403 F. Supp. 99, 104 (D.Mass.1975).

Recently, in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S. Ct. 2054, 52 L. Ed. 2d 665 (1977), the Supreme Court had an opportunity to re-consider Feres, and it again elected a broad application of the decision. In addition, the Court explained the three factors underlying the Feres doctrine of intra-military immunity:

431 U.S. at 671, 97 S. Ct. at 2058 (quoting Feres v. United States, supra, 340 U.S. at 143, 71 S. Ct. 153 and United States v. Brown, supra, 348 U.S. at 112, 75 S. Ct. 141, respectively.) The application of these factors to Mr. Thornwell's claims compels the conclusion that counts I-IV must be dismissed.
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Plaintiff asserts that his case is factually distinguishable from the situations involved in Feres because he seeks recovery for intentional torts as well as constitutional violations. Although in Feres, the Supreme Court only reviewed claims alleging negligence on the part of the military, neither the language nor the rationale of the Court's decision indicates that the legal theory of a soldier's claim ought to be a salient factor in determining the scope of intra-military immunity. In explaining its holding, the Court broadly provided immunity for "Injuries " which "arise out of or are in the course of activity incident to (military) service." 340 U.S. at 146, 71 S. Ct. at 159 (emphasis added). The constitutional and intentional tort claims raised in counts I-IV clearly involve such injuries. In addition, recovery for intentional torts, the elements of which may vary from jurisdiction to jurisdiction, would certainly impinge upon the "distinctively federal" relationship between the government and its armed forces. See 340 U.S. at 143, 71 S. Ct. 153. Moreover, intentional tort claims as well as claims for constitutional wrongs are both covered by the Veterans Benefits Act, 38 U.S.C. § 301 Et seq. (1976). See 431 U.S. at 671, 97 S. Ct. 2054, 52 L. Ed. 2d 665. Finally, "(t)he peculiar and special relationship of the soldier to his superiors," 348 U.S. at 112, 75 S. Ct. at 143, would be affected by Any personal injury claim, whether phrased in terms of negligent, intentional or constitutional wrong. Accordingly, Feres v. United States, supra, by itself, compels the dismissal of counts I-IV.

In count VII, Mr. Thornwell seeks recovery for defendants' alleged violation of 42 U.S.C. § 1985(3). Count VIII is based on 42 U.S.C. § 1986, which permits recovery against individuals who fail to prevent the conduct proscribed by section 1985(3). In light of two factors (1) the Court's decision to bar all of plaintiff's claims arising out of his service in the Armed Forces, and (2) Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1970), counts VII and VIII must be dismissed. Yet, because of the early stage of this litigation, the dismissal is without prejudice. In the event that, through discovery, plaintiff collects evidence which satisfies the standard established in Griffin v. Breckenridge, supra, he will certainly be entitled to renew these two claims.

First, in dismissing counts I-IV, the Court held that the Feres bar extended to All personal injury claims which arise out of, or are incident to, service in the Armed Forces. Although counts VII and VIII seek recovery for injuries sustained in the course of active duty as well as those incurred after discharge, this Court's holding with respect to counts I-IV compels the conclusion that these two counts are barred to the extent that they pertain directly to Mr. Thornwell's service in the Army. See Birdwell v. Schlesinger, 403 F. Supp. 710, 718 (D.Colo.1975). With respect to the remainder of counts VII and VIII that portion involving post-discharge discrimination it appears that the plaintiff's complaint has failed to satisfy the criteria established in Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1970).

In Griffin, the Court explained that a claim under section 1985(3) required a showing of "some racial or perhaps otherwise class based, invidiously discriminatory animus behind the conspirator's action." 403 U.S. at 102, 91 S. Ct. at 1798. In alleging plaintiff's active duty injuries, the complainant attempts to meet this test by merely hinting that race (Mr. Thornwell is black) was a factor in his selection for the drug test. Complaint PP 2 & 39(c) (filed Oct. 2, 1978). The complaint, however, is devoid of even the slightest suggestion that race was a factor in the defendants' post-discharge conduct. Due to the absence of any allegation of a class-based discriminatory animus, count VII must also be dismissed to the extent that it seeks to recover for defendants' treatment of the civilian Mr. Thornwell. Once count VII has been dismissed, count VIII, which relies on section 1986, must also be dismissed.

Both dismissals, however, are without prejudice. In the event that plaintiff, through discovery, gathers information which supports his allegations, he will certainly be entitled to renew his claims.

IV. UNDER THE FACTS OF THIS CASE, MR. THORNWELL MAY RECOVER FOR POST-DISCHARGE NEGLIGENCE

In count VI, Mr. Thornwell seeks to recover for the injuries which resulted from the defendants' alleged negligence in failing to provide him with any follow-up examinations, supervision, or other medical treatment during the seventeen years after his discharge. The Court finds that recovery for these post-discharge injuries is not merely consistent with Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), but also compelled by United States v. Brown, 348 U.S. 110, 75 S. Ct. 141, 99 L. Ed. 139 (1954).

Moreover, recovery for these post-discharge injuries is fully consistent with the rationale of Feres. In reviewing the personal injury claims of servicemen, courts have recognized that the precise relationship at the time of the wrong between the plaintiff and the military is a critical factor. E.g., Bankston v. United States, 480 F.2d 495 (5th Cir. 1973) (remand to determine if plaintiff had been discharged at the time of the alleged malpractice). If the plaintiff is a civilian when the alleged negligence occurs, immunity serves no valid purpose. With civilian status, the "peculiar and special relationship of the soldier to his superiors," United States v. Brown, supra, 348 U.S. at 112, 75 S. Ct. at 143, ceases and, as a result, the maintenance of a lawsuit will not have a deleterious effect on military discipline. Moreover, another factor critical to Feres the "distinctively federal relationship" between the government and the members of its Armed Forces, 340 U.S. at 143, 71 S. Ct. 153, is completely vitiated by an individual's change to civilian status: for civilians, there is no longer any relationship to be protected. Finally, the possibility of a statutory, "no fault" recovery, the third factor supporting Feres, is certainly more remote for veterans than for enlisted men. Although section 351 of title 38, United States Code, allows "no fault" recovery for veterans, its scope is much narrower than sections 310 and 331, the statutes which determine compensation for injured soldiers.
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Indeed, because recovery under section 351 is limited to injuries suffered as the result of medical treatment "awarded under any of the laws administered by the Veterans' Administration," it would appear that as a veteran, Mr. Thornwell has no statutory right to compensation for the wrongs which allegedly occurred after his discharge.
*fn4"
In sum, the interests which underly the Feres doctrine are not threatened by Mr. Thornwell's recovery for his post-discharge injuries.

Mr. Thornwell, however, does not allege a mere continuing negligent omission. He claims that he was Intentionally harmed while he was on active duty and he further claims that, after he became a civilian, the defendants failed to exercise their duty of care by neglecting to rescue him from the position of danger which they had created. Although the precise nature of the duty of care upon which the plaintiff relies is not clear,
*fn7"
Mr. Thornwell's claims for in-service, and out-of-service, injuries certainly involve two distinctly separate patterns of conduct, one intentional and negligent. Thus, he has alleged two entirely different torts, and even though the first tort occurred in the course of his military service, the second did not. In Henning v. United States, 446 F.2d 774, 777 (1971), the Third Circuit explained, "We think that Feres focuses not upon when the injury occurs or when the claim becomes actionable, but rather the time of, and the circumstances surrounding the negligent act." In count VI, Mr. Thornwell's complaint is perfectly clear in its allegation that the negligent act occurred, In its entirety, after he attained civilian status. Thus, his claim is valid.

230 F. Supp. at 540. The language of Schwartz is striking in its similarity to Mr. Thornwell's claim. Accordingly, it provides persuasive precedent for the Court's holding that when the duty of care is violated while the plaintiff is a civilian, courts must recognize the validity of his cause of action.

To summarize the relevant precedent, it appears that there are three types of personal injury cases which involve post-discharge negligence. In the first case, the military performs separate negligent acts (i. e., two improper operations), one before, and one after, discharge; United States v. Brown, 348 U.S. 110, 75 S. Ct. 141, 99 L. Ed. 139 (1954), and Hungerford v. United States, 192 F. Supp. 581 (N.D.Cal.1961), Rev'd on other grounds, 307 F.2d 99 (9th Cir. 1962), both clearly indicate that the injured veteran may recover for the later act. In the second case, a single negligent act occurs and its effects linger after discharge; Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), holds that, under some circumstances, this one act is subject to intra-military immunity. Third, the military may commit an intentional act and then negligently fail to protect a soldier turned civilian from the dire consequences which will flow from the original wrong. This Court holds that, under such circumstances, the injured civilian may have a valid claim against the tortfeasors. The later negligence is a separate wrong, a new act or omission occurring after civilian status is attained; the perpetrators of this wrong must be held accountable for their conduct.

The Court is, of course, mindful of the possibility that artful pleading may be employed to elevate one continuing act of negligence into separate wrongs.
*fn9"
The defendants' however, have never contested the legitimacy of the distinction which plaintiff's complaint draws between the intentional wrongs inflicted while on active duty and the negligent omission occurring after his discharge. Nonetheless, if the defendants wish to show that the drugging of Mr. Thornwell was a mere accident something akin to the careless surgeon's towel on Feres then the Court will re-consider its decision in light of the "continuing negligence" line of precedent. Absent such a showing, the Court finds that count VI states a valid claim.

First, in reviewing count VI, the Court held that Mr. Thornwell's allegation of post-discharge negligence involved a course of conduct distinct and separate from the intentional wrongs which had occurred while he was on active duty. As a result, the Feres doctrine of intra-military immunity had no application. Mr. Thornwell's allegation of an unconstitutional cover-up also involves a new course of conduct arising after the attainment of civilian status; thus, the rationale of this Court's approval of count VI compels the conclusion that count V also states a valid claim. Indeed, the case for the validity of count V is a simple one because the concept of immunity for a "continuing tort"
*fn11"
can have no application when intentional or unconstitutional conduct is involved. To hold that the military may deprive a civilian of his constitutional rights merely because the deprivation originated when the civilian was an enlisted man would be tantamount to declaring all veterans second class citizens. Men and women who have served in our Armed Forces, and to whom this nation is indebted beyond measurement, are certainly entitled to the constitutional liberties afforded all citizens. In short, if the military deprives a veteran of his constitutional rights, it may not look to Feres for immunity.
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B. There is a Cause of Action For Damages Under The Fifth Amendment.

Apart from Feres, the defendants also contend that there can be no implied private right of action under the fifth amendment. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), the Supreme Court recognized the validity of a cause of action for a violation of the fourth amendment; the defendants' however, argue that Bivens should be limited to suits under the fourth amendment. Although other courts have divided on the question of Bivens' application to fifth amendment claims,
*fn13"
this Court finds that violations of the fifth amendment may give rise to a valid cause of action.

Apart from the precedent of Payne and Dellums, the Court finds independently that a restrictive interpretation of Bivens is inappropriate. The defendants rely on Torres v. Taylor, 456 F. Supp. 951 (S.D.N.Y.1978) in support of the proposition that plaintiff's allegations of a violation of the fifth amendment fail to state a claim. In Torres, Judge Weinfeld ruled that when relief was available under the Federal Tort Claims Act ("the Act"), a cause of action could not be implied for a violation of the fifth amendment. Id. at 954. With all due respect, the Court is not inclined to follow the Torres holding.

First, the Court believes that, in interpreting Bivens, Torres relies too heavily on Justice Harlan's concurring opinion which asserted that the Court held a constitutional cause of action proper because it was the Only possible remedy for the alleged wrong. Id. at 953 (citing Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 409-410, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) (Harlan, J., concurring)). However, the majority opinion clearly indicated that, even in the absence of a new cause of action, the wronged party would still not be without remedy:

Respondents do not argue that petitioner should be entirely without remedy for an unconstitutional invasion of his rights by federal agents. In respondents' view, however, the rights that petitioner asserts primarily rights of privacy are creations of state and not of federal law. Accordingly, they argue, petitioner may obtain money damages to redress invasion of these rights only by an action in tort, under state law, in the state courts.

403 U.S. at 390, 91 S. Ct. at 2001-2002. Thus, in Bivens the Supreme Court recognized that without an implied private right of action, the petitioner would not be remediless; he would only be without a remedy in the federal courts. Moreover, the Court explained, "(I)t is well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, Federal courts may use any available remedy to make good the wrong done." Id. at 396, 91 S. Ct. at 2004 (quoting Bell v. Hood, 327 U.S. 678, 684, 66 S. Ct. 773, 90 L. Ed. 939 (1946) (emphasis added)). This Court finds that a cornerstone of Bivens is the strong federal interest in providing a remedy in the federal courts for violations of the United States Constitution.

Finally, a suit under the fifth amendment may well be the only cause of action which fully encompasses the wrongs which Mr. Thornwell has alleged. The facts stated on the face of his complaint appear to go far beyond the outrageous conduct which marks the common law tort of intentional infliction of emotional distress. The injury which he suffered was not mere "emotional distress," but rather a prolonged psychiatric disorder accompanied by severe physical pain. In addition, the defendants' conduct involved not only intentional harm to Mr. Thornwell, but also willful disregard of both Army regulations and public promises made by high ranking military officials. Perhaps the only tort which is capable of describing this course of conduct is one based upon the fifth amendment's guarantee that no person shall "be deprived of life, liberty, or property, without due process of law." U.S.Const. amend. V.

In accordance with the foregoing, this Court finds that count V of plaintiff's complaint states a valid cause of action and, as a result, defendants' motion to dismiss count V must be denied.

VI. VENUE FOR THIS ACTION LIES IN THE DISTRICT OF COLUMBIA.

A. 28 U.S.C. § 1391(b).

The individual defendants have also moved to dismiss on the grounds that venue is not proper in the District of Columbia. In light of both the principles recently explicated by the Court of Appeals for this Circuit in Lamont v. Haig, 192 U.S.App.D.C. 8, 590 F.2d 1124 (1978), and the limitations placed on plaintiff's suit by other portions of this opinion, the Court must conclude that venue is proper under 28 U.S.C. § 1391(b).
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In Lamont v. Haig, 192 U.S.App.D.C. 8, 16, 590 F.2d 1124, 1132 (1978), the Court of Appeals examined section 1391(b)"s language declaring venue proper in the judicial district "in which the claim arose." The Court of Appeals indicated that district courts need not pursue a literalistic search for the One judicial district in which a party's claim "arose." Instead, when "sophisticated multistate activities of relative complexity are in issue," Id. at 17, 590 F.2d at 1133, a more flexible approach would be appropriate:

Id. at 18, 590 F.2d at 1134. The court further indicated that, even in situations where the evidence not in the parties' possession was most readily available "in areas in which none of the principal events in the suit occurred," the district court should accept venue "if the activities that transpired in the forum district were not insubstantial in relation to the totality of events giving rise to plaintiff's grievance." Id. at 18 n. 62, 590 F.2d at 1134 n. 62. In effect, the district court is charged not only with evaluating the contacts between the forum and plaintiff's allegations, but also weighing that forum's convenience for the litigants. Under this standard, the District of Columbia is clearly a proper judicial district for Mr. Thornwell's claim.

The exhibits which Mr. Thornwell has offered in support of his claim contain relevant correspondence involving Army officials headquartered in the District of Columbia. Also, in this forum, crucial Army studies on the effects of LSD were prepared and distributed. From Washington, D.C., Cyrus Vance, then general counsel to the Secretary of the Army, requested a specific review of Thornwell's case
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and General Throckmorton and Lieutenant Colonel Brandenburg both supervised the review from that same Washington office.
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Defendants Harold Brown, Cyrus Vance and other Secretaries of the Army acted in Washington, in their official capacity, to assume responsibility for the safety of subjects of LSD testing.
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Also, in 1976, the Internal Revenue Service notified Mr. Thornwell from Washington that he might have been a victim of LSD experiments and the Service then neglected to follow up that notification. Complaint PP 50-53 (filed Oct. 2, 1978). There are, of course, far more contacts between the District of Columbia and the instant lawsuit, but a further review would serve no purpose. It is clear that numerous events which have "operative significance in the case," id. at 18, 590 F.2d at 1134, occurred in the District of Columbia. Moreover, it is equally clear that in terms of accessibility to witnesses, documents and other evidence, the District is as convenient as any other forum; indeed, it may well be the most convenient forum. Accordingly, with respect to the individual defendants, venue is proper under 28 U.S.C. § 1391(b).

B. 28 U.S.C. §§ 1402(b) & 1391(e).

For the defendant United States, the relative venue provision is 28 U.S.C. § 1402(b), which provides:

Any civil action against the United States under subsection (b) of section 1346 of this title may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.

Also, for the four defendants named in their official capacity,
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28 U.S.C. § 1391(e) controls venue considerations and, in pertinent part, it states:

Like section 1391(b), section 1402(b) refers to The judicial district where the wrongful act occurred, thus suggesting that only one district is proper. Section 1391(e) is also susceptible to a similar, narrow interpretation. Yet, because Lamont v. Haig, supra, compels a broader reading of section 1391(b), this Court believes that sections 1391(e) and 1402(b) must be similarly construed. Indeed, it is well established that section 1391(e)"s reference to the district where the "cause of action arose" is identical to section 1391(b)"s language concerning the district "in which the claim arose." 15 Wright & Miller's Federal Practice and Procedure § 3815, at 95 (1976). Accordingly, in reviewing venue objections under sections 1391(e) and 1402(b), the Court must apply the same "preponderance of the contacts" test that it employed under section 1391(b), and under this test, it concludes that venue is proper for the United States and the four defendants named in their official capacity.

In view of the foregoing, the Court denies defendants' motion to dismiss for lack of venue.

VII. DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION IS DENIED WITHOUT PREJUDICE

Finally, the defendants have also moved to dismiss plaintiff's claim for lack of personal jurisdiction. In their arguments before the Court, the parties have evidently assumed that plaintiff's complaint states, in its entirety, a valid claim. The Court, however, has ruled otherwise and accordingly several individual defendants, who may only have participated in the pre-discharge wrongs, may no longer be proper parties to this action. The Court is not now willing to assume the burden of culling the thirty defendants to ascertain who among them was exclusively involved in pre-discharge activity. The parties are certainly more capable of performing this task and the Court encourages them to promptly re-examine the case with this issue in mind. Once the process of re-examination is completed, the Court will be better able to render an informed decision regarding personal jurisdiction. Accordingly, defendants' motion to dismiss for lack of personal jurisdiction shall be denied without prejudice to renewal.

The Court, however, notes the right to renewal will not extend to the four defendants
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who were served in the District of Columbia; with respect to these individuals, the Court clearly has plenary In personam jurisdiction. The Court also has jurisdiction over the four individuals who were served in their present official capacity.
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Moreover, the Court requests the plaintiff to inform the Court of his position with respect to the two defendants
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who are now deceased.

VIII. CONCLUSION

This Court finds that plaintiff has stated a valid cause of action with respect to the injuries allegedly incurred after his discharge. However, for those injuries received while on active duty, Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), bars all recovery. In addition, the District of Columbia is a proper judicial district in which to bring this action. Finally, the Court believes that most of the objections regarding personal jurisdiction are not directed to the plaintiff's claim as shaped by this decision; accordingly, in lieu of speculating about the post-discharge activity of each defendant, the Court has decided to provide the defendants with an opportunity to renew their motion in light of this opinion.

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